John Hemming's Web Log John's Reference Website
Saturday, December 30, 2006
  The Rule of Law and Process of Change
One thing I find interesting to study is how systems change. In theory politics is about "power" and the ability to effect change. However, frequently "politics" is about status and really does not result in that much that changes.

Good examples of laws that have not had any real effect is the "banning" of hunting with hounds. The argument about whether it is better for a fox to be shot than torn about by dogs resulted in a law that cannot be seen to have had any real discernable effect.

At the same time the law has been recently reinterpreted to substantially open up much of the actions of the Family Courts. There is an interesting question as to what encourages judges such as Mumby J to make such clear shifts in process. There is a public debate in the media, there was also an Early Day Motion that had large numbers of MPs sign it.

In a traditional constitutional sense the houses of parliament are actually courts. They were used to change the common law through statute in such a manner as had popular consent and could be used to consider individual actions. The COmmons retains its power of committal. The powers to hold the executive to account have developed over time.

Where there is an interesting question is to what extent actions in the House of Commons which fall short of statute can affect the interpretation of law by the Courts. That is an issue which I would like to challenge in the new year. If an Early Day Motion is signed by sufficient (probably a majority) of MPs then that should be seen as a reasonable basis for an interpretative guide by the courts.

Even with a written constitution there are still going to be areas of interpretation. I do think there is a case for determining which statutes are constititional and should require more than a majority in parliament for change. However, I am not sure that we need to hardwire the majority of the British constitution.

Still I have a couple of projects upon which I would aim to test the constitution in ways that it has not overtly been tested before.
 
Comments:
The situation as it stands at the moment is that courts won't, other then in the cases of if ambiguity or obscurity, refer to proceedings in Parliament (Pepper v Hart - House of Commons Standard Note: http://www.parliament.uk/commons/lib/research/notes/snpc-00392.pdf).

If you wanted to have them accept an EDM in (I'm presuming) an ongoing case (i.e. the EDM has been signed during the litigation process, as was the case with Jane Longhurst for example - or am I missing the point?), you'd need a) a very skilled advocate in court to draw the court's attention to it, b) a great deal of luck.
 
This approach brings into question the principle of the separation of the legistlature from the judiciary. All good dictatorships seek to ensure that the courts interpret the law according to their wishes. Our current process though not perfect give the judges some discretion and power. The conclusion of this approach is that judges could be open to challenge for not following the wishes of parliament.
 
Pepper v Hart is key, but it relates to the 1688 Bill of Rights.

It is, however, not about specific cases and parliament taking a view on those, but on the interpretation of the law (or what the law actually means) generally. Parliament does drive interpretation.

Apart from the Judicial Committee of the House of Lords parliament should not have a view on individual cases that has any effect. There are rules in places to ensure that members of the Judicial Committee do not take part in any other discussions relating to matters before the Judicial Committee.

Watchdog is otherwise right in that it is important that the executive or legislature do not get involved in individual cases per se.
 
The position on the Houses of Parliament, as I understand it, is that they are the legislature, and devise their own procedures for making law.

As part of this process they take soundings amongst themselves (ie EDMs inter alia), they engage in debate and they use committees to further debate specific issues, as well as take soundings from the public. Some of them form part of the Executive and make executive decisions which are implemented by Civil Servants, but these stand apart from their parliamentary functions, except in so much as that the Executive has a duty to report to and be held accountable by parliament.

It would seem to me that if they wished to alter the function of EDMs, firstly they would have to evolve ways of using them which added detail and complexity, such that they began to assume the character of enacted legislation or executive orders, for which processes already exist, as above.

Judges and officials already take cognizance, some may say too much cognizance, of what is called public opinion, but what are often in reality concerted campaigns by sections of the media and vested interest lobby groups.

I do not see that legislators, outside their functions as legislators, should be treated as any different from other members of the public in this respect, and believe that vested interests, in particular the media and corporate public relations interests, have already vastly exceeded their proper place.

The democratic process is already such, in this country, that the larger parties have rigged the situation to exclude smaller political groups from the fray, particularly at national level, and the number of people voting for them is getting so small that their claims to represent the voice of the people is dubious - at least until they put their own house in order.

As somebody who also strives to maintain a forum for fair debate and opinion forming, what I see is a plethora of individuals, with their blogs, striving for attention and celebrity status, whilst money and media control increasingly dictate the actual agenda. This is largely due to the democratic deficit caused by the electoral machinations of the larger political parties.

In such a climate, the legal professions and officials would have and do have great difficulty in deciding what facets of "public opinion" to take into account, and EDMs would seem to be towards the rump end of their considerations, quite justifiably.
 
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